268 S.W. 1064 | Tex. App. | 1925
Appellants, a copartnership, instituted this suit against Mrs. Annie E. Cusenbary, W. R. Cusenbary, Ben Cusenbary, and Hattie B. Cusenbary, to recover $1,000 advanced as a payment for certain sheep, and for $2,375 damages, arising from a failure of appellees to deliver the sheep according to the terms of a parol contract entered into between the appellants and appellees. A jury heard the evidence, and then the court gave a peremptory instruction to the jury to return a verdict for appellees, which was done, and judgment rendered accordingly.
The first amended petition in this case was filed on February 27, 1920, and a trial amendment was filed on May 7, 1924. The trial amendment did not set up a new cause of action, but was merely an amplification of the original cause of action. Appellants sought to recover $1,000 which they had paid appellees, and for which they had received nothing. They sought to recover this money as well as damages for the breach of the contract. The contract alleged in the first amended original petition and that alleged in the trial amendment were practically the same. The cause of action was not changed, and the statute of limitation did not begin to run. The trial amendment could not and did not set aside the first amended petition. No such effect is given to a trial amendment, but, if there be an inconsistency and antagonism between the former pleadings and the trial amendment, it should be reached by exception. The facts showed a case which should have been submitted to a jury.
The judgment is reversed and the cause remanded. *1119